Football Injuries, Liability, Future of Game

These days we're getting more and more information about the consequences of playing in a violent game like football. Concussions have sidelined the Longhorn's starting QB, with Swoopes taking off his redshirt most likely because Ash is done for the season. Whether or not the number of concussions is exploding in college and the NFL or diagnosis is better and awareness is greater I think everyone would agree there is a problem. Junior Seau's tragic suicide after bouts of depression believed to be caused by concussions sustained in his career raised the volume of those who have been pointing out the risks for years.

Rule changes to limit these types of injuries are changing how the game is played. Spearing, targeting, etc. are being strictly enforced, much to the consternation of many purists of the game. Every team at every level, including Texas in college ball, has experienced ill-timed penalties during games that fans have been upset by. "Aww, c'mon, that was a legit tackle, you've gotta be kidding me!" we have all said at some time in the past year or two as the new rules are taking effect. And as more data comes out about the risks of concussions from playing the sport and lawsuits begin to get traction more rule changes are in store.

The lawsuit angle I find disturbing. I'm someone who's generally unsympathetic with plaintiffs seeking financial redress for actions they took that involved risks they voluntarily agreed to. Cigarette smoking. Drinking hot coffee while driving. Trial lawyers have a history of shopping questionable lawsuits and testing new theories of liability in jurisdictions with favorable laws. John Edwards made his fortune and political name doing that. The standard argument they make is that while a plaintiff volunteered to take on a level of risk they were not aware of all of the risks that were known or should have been known by the defendant. I know BON has many contributors who are in the legal profession who, all things being equal, would probably err on the side of plaintiffs. My beliefs about personal responsibility would leave me to err on the side of defendants.

In assessing liability it is standard practice to sue the deepest pockets, regardless of the percentage of contributory negligence. A verdict may assess the deepest pockets with 1% of the responsibility but issue a judgement carrying 99% of the award, depending on the rules of a given jurisdiction. The NFL has the deepest pockets in the football universe, followed by NCAA programs. Down the line local middle and high schools have the pockets of taxpayers, Pop Warner and other pee wee leagues are among the least well-funded programs. Semi-pro leagues, city leagues and regular 'ole pick-up games at the park also have limited resources.

Yet, when the lawsuits against the NFL and college programs are filed every single level that football is played at will surely have some level of contributory negligence that is or could be alleged. By the plaintiff, or by the defendant. How can it be determined if a concussion is sustained on an individual play, and which play? Which game? Is there a cumulative effect and what is the medical science behind said cumulative effect where the percentage of negligence can be absolutely assigned? Did the worst injury happen in a pick up game at the park? Or in the back yard with family and friends? Is scrambling a brain at eight years old in a hard tackle more damaging than at eighteen or twenty-eight? How much risk did the plaintiff knowingly take on versus unknowingly?

This uncertainty about liability has great potential to derail the game those of us on BON enjoy watching, most people in general enjoy watching, many enjoy playing, and a few enjoy playing at the highest levels. Like the initial lawsuits over cigarette smoking it will probably take years and years of test lawsuits without a successful verdict before a judgement is awarded. Every set of pockets involved is aware of the history of lawsuit progression, are aware of the costs involved in defending against them even if cleared of liability, and dreads the prospect of a "smoking gun" memo coming out that points to a conspiracy to withhold information about the risks involved in the sport. For the NFL and NCAA there's big money at stake. Perhaps even for the networks that carry the game and have become valuable partners invested in it (LHN?).

I have no crystal ball as to how the game will change to deal with the growing concerns of concussions in modern football, or how far back and how far down the line every program needs to be worried about financial liability. I do believe that players in the NFL are fully aware of the risks to their health. And they are highly compensated for it. Much of that compensation is in reality combat pay for putting their bodies and brains on the line. My sympathies for them are greatly muted by this knowledge. The ones who make millions of dollars taking known risks and live lavishly during their playing years instead of investing in building up a nest egg to deal with the expected medical problems - which a portion of their compensation (in the top .0000000001% of all earners in the world) recognizes will be a need - don't exactly make me feel terribly sorry for them. But what about the college players, most of whom will never see a paycheck for the risks they took? Sure, they got to be BMOC and enjoy all the perks on a campus that playing brings, but that's a good question. Time will tell about how we deal with the fact the sport is violent and takes a toll.

And many professions are inherently dangerous but don't have highly visibility and deep pockets. The roofer who works with hellish temperatures and noxious chemicals applying tar. The butcher or mill worker. The Hollywood stuntman. Our nation's soldiers. Who gets awarded compensation for injuries sustained on a dangerous job above their salary for what amounts to a delayed worker's compensation claim? Just those professions with the deepest pockets? Hollywood studios certainly have deep pockets, those stuntmen have to be keeping a close eye on how this area of civil liability law evolves. As do most athletes like boxers, hockey players, even cyclists.

One thing to consider, however, as we look towards the future of the game is examining how the game evolved into such a dangerous sport to begin with. We have more protective gear being used that delivers greater margins of safety than ever before. Yet we have more concussions than ever before. One theory I believe is worthy of greater examination is that the more protective gear protects the more risk is taken by players. Collisions are more violent today because players don't feel the pain like they used to at lower speeds. As counter-intuitive as it may be, perhaps removing many pieces of protective gear could actually reduce concussions. A game that slows down will naturally have lower G-forces that are experienced in collisions, G-forces that scramble the brain inside a skull, without visible injury. It's not the fall off a four-story building that kills you, it's the sudden stop. Here's a link to an article that explores this theory in greater detail:

One thing is for certain, what was ain't what is, what is ain't what it'll be, and it's possible that what it'll be could end up similar to what it once was. The world has a funny way of coming full circle some times, it'll be interesting to see how it all plays out.

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